Workplace Privacy Act 2011 - ACT Legislation by the ACT Parliamentary Counsel—also accessible at Australian Capital Territory Workplace Privacy Act 2011

  • Published on
    24-Apr-2018

  • View
    212

  • Download
    0

Embed Size (px)

Transcript

  • Authorised by the ACT Parliamentary Counselalso accessible at www.legislation.act.gov.au

    Australian Capital Territory

    Workplace Privacy Act 2011 A2011-4

    Republication No 5 Effective: 28 March 2018

    Republication date: 28 March 2018

    Last amendment made by A2018-10 (republication for updated endnotes as amended by A2018-10)

    http://www.legislation.act.gov.au/a/2018-10/default.asphttp://www.legislation.act.gov.au/a/2018-10/default.asp

  • Authorised by the ACT Parliamentary Counselalso accessible at www.legislation.act.gov.au

    About this republication The republished law This is a republication of the Workplace Privacy Act 2011 (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)) as in force on 28 March 2018. It also includes any commencement, amendment, repeal or expiry affecting this republished law to 28 March 2018.

    The legislation history and amendment history of the republished law are set out in endnotes 3 and 4.

    Kinds of republications The Parliamentary Counsels Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at www.legislation.act.gov.au):

    authorised republications to which the Legislation Act 2001 applies

    unauthorised republications. The status of this republication appears on the bottom of each page.

    Editorial changes The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice. This republication does not include amendments made under part 11.3 (see endnote 1).

    Uncommenced provisions and amendments

    If a provision of the republished law has not commenced, the symbol U appears immediately before the provision heading. Any uncommenced amendments that affect this republished law are accessible on the ACT legislation register (www.legislation.act.gov.au). For more information, see the home page for this law on the register.

    Modifications

    If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see the Legislation Act 2001, section 95.

    Penalties At the republication date, the value of a penalty unit for an offence against this law is $150 for an individual and $750 for a corporation (see Legislation Act 2001, s 133).

    http://www.legislation.act.gov.au/a/2001-14http://www.legislation.act.gov.au/http://www.legislation.act.gov.au/a/2001-14http://www.legislation.act.gov.au/a/2001-14http://www.legislation.act.gov.au/a/2001-14http://www.legislation.act.gov.au/http://www.legislation.act.gov.au/a/2001-14http://www.legislation.act.gov.au/a/2001-14

  • R5 28/03/18

    Workplace Privacy Act 2011 Effective: 28/03/18

    contents 1

    Authorised by the ACT Parliamentary Counselalso accessible at www.legislation.act.gov.au

    Australian Capital Territory

    Workplace Privacy Act 2011

    Contents Page

    Part 1 Preliminary 1 Name of Act 2 3 Dictionary 2 4 Notes 2 5 Offences against Actapplication of Criminal Code etc 3

    Part 2 Object and important concepts 6 Object of Act 4 7 Meaning of worker 4 8 Meaning of employer 4 9 Meaning of business or undertaking 5 10 Meaning of workplace 5 11 Meaning of surveillance etc 6

  • Contents

    Page

    contents 2 Workplace Privacy Act 2011 Effective: 28/03/18

    R528/03/18

    Authorised by the ACT Parliamentary Counselalso accessible at www.legislation.act.gov.au

    Part 3 Notified surveillanceDivision 3.1 General 12 Meaning of surveillancept 3 8Division 3.2 Notifying workplace surveillance 13 Notice of surveillance required 8 14 Requirement for consultation on proposed surveillance 9 15 Additional requirements for optical surveillance devices 10 16 Additional requirements for data surveillance devices 10 17 Additional requirements for tracking devices 11 18 Offencesfailure to comply with notified surveillance requirements 11Division 3.3 Other matters 19 Surveillance by agreement 12 20 Offencerestrictions on blocking electronic communication and

    internet access 13 21 Notice of blocking electronic communication and internet access 14 22 Offencesuse and disclosure of surveillance records 15 23 Access to surveillance records of notified surveillance 16

    Part 4 Covert surveillanceDivision 4.1 General 24 Meaning of covert surveillanceAct 19 25 Definitionspt 4 19Division 4.2 Covert surveillance authorities 26 Application for covert surveillance authority 20 27 Hearing in private 21 28 Issuing covert surveillance authority 21 29 Appointing surveillance supervisor 23 30 Duration of covert surveillance authority 24 31 Conditions on covert surveillance authority 24 32 Defects in covert surveillance authority 24 33 Varying or cancelling covert surveillance authority 25 34 Magistrates Court to record details of covert surveillance authority

    orders 25

  • Contents

    Page

    R5 28/03/18

    Workplace Privacy Act 2011 Effective: 28/03/18

    contents 3

    Authorised by the ACT Parliamentary Counselalso accessible at www.legislation.act.gov.au

    Division 4.3 Restrictions on covert surveillance 35 Offenceconducting covert surveillance other than under covert

    surveillance authority 26 36 Defencessurveillance for security of workplaces 27Division 4.4 Reporting on covert surveillance authority 37 Offencefailure to give covert surveillance report 28 38 Orders for covert surveillance record 29Division 4.5 Covert surveillance records 39 Offenceuse and disclosure of covert surveillance other than for a

    relevant purpose 30 40 Information inadvertently obtained under covert surveillance authority 32

    Part 5 Prohibited surveillance 41 Offencesurveillance of private areas etc 33 42 Surveillance of workers not at work 33 43 Use and disclosure of certain tracking device records 34

    Part 5A Enforcement 43A The regulator 35 43B Inspectors 36 43C Functions and powers of inspectors 36 43D Securing compliance 36 43E Enforcement measures 37

    Part 6 Miscellaneous 44 Offencessecurity of surveillance records 38 46 Approved forms 38 47 Regulation-making power 38

    Dictionary 39

    Endnotes 1 About the endnotes 42 2 Abbreviation key 42

  • Contents

    Page

    contents 4 Workplace Privacy Act 2011 Effective: 28/03/18

    R528/03/18

    Authorised by the ACT Parliamentary Counselalso accessible at www.legislation.act.gov.au

    3 Legislation history 43 4 Amendment history 44 5 Earlier republications 45

  • R5 28/03/18

    Workplace Privacy Act 2011 Effective: 28/03/18

    page 1

    Authorised by the ACT Parliamentary Counselalso accessible at www.legislation.act.gov.au

    Australian Capital Territory

    Workplace Privacy Act 2011

    An Act to regulate surveillance of workers in workplaces, and for other purposes

  • Part 1 Preliminary

    Section 1

    page 2 Workplace Privacy Act 2011 Effective: 28/03/18

    R528/03/18

    Authorised by the ACT Parliamentary Counselalso accessible at www.legislation.act.gov.au

    Part 1 Preliminary 1 Name of Act

    This Act is the Workplace Privacy Act 2011.

    3 Dictionary The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain terms used in this

    Act, and includes references (signpost definitions) to other terms defined elsewhere. For example, the signpost definition adverse actionsee the Fair Work Act 2009 (Cwlth), section 342. means that the term adverse action is defined in that section and the definition applies to this Act.

    Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

    4 Notes A note included in this Act is explanatory and is not part of this Act. Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of

    notes.

    http://www.comlaw.gov.au/Series/C2009A00028http://www.comlaw.gov.au/Series/C2009A00028http://www.legislation.act.gov.au/a/2001-14http://www.legislation.act.gov.au/a/2001-14

  • Preliminary Part 1

    Section 5

    R5 28/03/18

    Workplace Privacy Act 2011 Effective: 28/03/18

    page 3

    Authorised by the ACT Parliamentary Counselalso accessible at www.legislation.act.gov.au

    5 Offences against Actapplication of Criminal Code etc Other legislation applies in relation to offences against this Act. Note 1 Criminal Code

    The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1). The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

    Note 2 Penalty units The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

    http://www.legislation.act.gov.au/a/2002-51http://www.legislation.act.gov.au/a/2001-14

  • Part 2 Object and important concepts

    Section 6

    page 4 Workplace Privacy Act 2011 Effective: 28/03/18

    R528/03/18

    Authorised by the ACT Parliamentary Counselalso accessible at www.legislation.act.gov.au

    Part 2 Object and important concepts 6 Object of Act

    The main object of this Act is to regulate the collection and use of workplace surveillance information.

    7 Meaning of worker In this Act:

    worker means an individual who carries out work in relation to a business or undertaking, whether for reward or otherwise, under an arrangement with the person conducting the business or undertaking. Examplesworker 1 employee 2 independent contractor 3 outworker 4 person doing a work experience placement 5 volunteer

    Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

    8 Meaning of employer (1) In this Act:

    employer, of a worker

    (a) includes

    (i) a person who engages the worker to carry out work in the persons business or undertaking; and

    http://www.legislation.act.gov.au/a/2001-14

  • Object and important concepts Part 2

    Section 9

    R5 28/03/18

    Workplace Privacy Act 2011 Effective: 28/03/18

    page 5

    Authorised by the ACT Parliamentary Counselalso accessible at www.legislation.act.gov.au

    (ii) if the person who engages the worker is a corporationa related body corporate of the corporation; but

    (b) does not include a person (the householder) who engages someone else to perform domestic duties at the premises where the householder lives.

    Examplesemployer 1 principal contractor is an employer of a subcontractor 2 host organisation is an employer of a labour hire worker

    Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

    (2) In this section:

    related body corporatesee the Corporations Act, section 9.

    9 Meaning of business or undertaking In this Act:

    business or undertaking includes

    (a) a not-for-profit business; and

    (b) an activity conducted by a local, state or territory government.

    10 Meaning of workplace In this Act:

    workplace means a place where work is, has been, or is to be, carried out by or for someone conducting a business or undertaking.

    http://www.legislation.act.gov.au/a/2001-14http://www.comlaw.gov.au/Series/C2004A00818

  • Part 2 Object and important concepts

    Section 11

    page 6 Workplace Privacy Act 2011 Effective: 28/03/18

    R528/03/18

    Authorised by the ACT Parliamentary Counselalso accessible at www.legislation.act.gov.au

    11 Meaning of surveillance etc (1) In this Act:

    conduct surveillancea person conducts surveillance if the person

    (a) conducts the surveillance personally; or

    (b) causes someone else to conduct the surveillance.

    data surveillance device

    (a) means a device or program capable of being used to record or monitor the input of information into or the output of information from a computer; but

    (b) does not include an optical surveillance device.

    optical surveillance device

    (a) means a device capable of being used to record visually or observe an activity; but

    (b) does not include spectacles, contact lenses or a similar device used by a person with impaired sight to overcome that impairment.

    surveillance means surveillance using a surveillance device.

    surveillance device means

    (a) a data surveillance device, an optical surveillance device or a tracking device; or

    (b) a device that is a combination of any 2 or more of the devices mentioned in paragraph (a); or

    (c) a device of a kind prescribed by regulation.

  • Object and important concepts Part 2

    Section 11

    R5 28/03/18

    Workplace Privacy Act 2011 Effective: 28/03/18

    page 7

    Authorised by the ACT Parliamentary Counselalso accessible at www.legislation.act.gov.au

    tracking device means an electronic device capable of being used to work out or monitor the location of a person or an object or the status of an object. Examplestracking device GPS, biometrics, radio frequency identification

    Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

    (2) In this section:

    device includes an instrument, apparatus or equipment.

    http://www.legislation.act.gov.au/a/2001-14

  • Part 3 Notified surveillance Division 3.1 General

    Section 12

    page 8 Workplace Privacy Act 2011 Effective: 28/03/18

    R528/03/18

    Authorised by the ACT Parliamentary Counselalso accessible at www.legislation.act.gov.au

    Part 3 Notified surveillance

    Division 3.1 General

    12 Meaning of surveillancept 3 In this part:

    surveillance does not include

    (a) covert surveillance; or

    (b) prohibited surveillance. Note Covert surveillancesee s 24.

    Prohibited surveillancesee the dictionary.

    Division 3.2 Notifying workplace surveillance

    13 Notice of surveillance required (1) An employer may only conduct surveillance of a worker in a

    workplace if

    (a) the employer gives written notice to the worker under this section; and Note For how documents may be given, see the Legislation Act,

    pt 19.5.

    (b) the surveillance is conducted in accordance with the notice.

    (2) However, an employer need not give written notice to a worker for surveillance using an optical surveillance device in a workplace if the workplace is not a usual workplace of the worker.

    (3) The notice must be given

    (a) at least 14 days before the surveillance starts; or

    (b) if the work...